Citation Nr: 9934867
Decision Date: 12/14/99 Archive Date: 12/16/99
DOCKET NO. 96-03 442 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUES
1. The propriety of the 20 percent rating assigned for the
service-connected left elbow disability prior to February 6,
1996.
2. The propriety of the 40 percent rating assigned for the
service-connected left elbow disability as of February 6,
1996.
3. Entitlement to special monthly compensation (SMC) for the
loss of use of one hand.
4. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disabilities.
ATTORNEY FOR THE BOARD
James L. March, Counsel
INTRODUCTION
The veteran served on active duty from November 1991 to
September 1993.
This matter initially came to the Board of Veterans' Appeals
(Board) on appeal from a March 1994 rating decision of the
RO.
In September 1999, the Board denied issues of service
connection for right and left knee disorders. In addition,
the Board remanded the SMC and TDIU issues, as well as the
veteran's appeal of the initial rating assigned for a
service-connected left elbow disability.
REMAND
Following the Board's September 1999 remand, the Veterans
Service Center Manager issued a memorandum to the Board in
which it was explained that the RO declined to comply with
the Board's remand instructions. A remand by the Board,
however, confers on an appellant the right to VA compliance
with the terms of the remand order and imposes on the
Secretary a concomitant duty to ensure compliance with those
terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
In addition to the veteran's right to have the RO comply with
the terms of the Board's remand, the reasoning of the
Veterans Service Center Manager for not complying with the
Board's remand is legally flawed.
In March 1994, the RO granted service connection for left
ulnar neuropathy with loss of function of fingers three, four
and five. A 50 percent rating was assigned, effective from
September 3, 1993. In January 1995, the veteran filed a
Notice of Disagreement, alleging, in essence, that he was
entitled to a separate compensable rating for loss of motion
of the left elbow. In April 1995, the RO granted service
connection for the veteran's left elbow disability and
assigned a separate 20 percent rating, effective from
September 3, 1993. The RO issued a Statement of the Case
which included the issue of entitlement to an increased
evaluation for the left elbow disability. The veteran
perfected the appeal by filing a timely Substantive Appeal
which specifically addressed the rating assigned for the left
elbow disability.
In February 1997, the RO increased the rating for the
veteran's left elbow disability to 40 percent disabling,
effective from February 6, 1996. The RO informed the veteran
that this was "considered a complete grant of this issue on
appeal." Thus, the RO removed the issue from the appeal to
the Board.
In declining to comply with the Board's remand instructions,
the Veterans Service Center Manager noted that the veteran
did not contest the finding that the February 1997 decision
was a complete grant. Further, the Veterans Service Center
Manager noted,
The remand seems to note two basis [sic]
for justification, the first being that
the veteran filed an appeal, and a later
argument that the evaluation of the elbow
was inextricably intertwined with the
issue on appeal. Sadly, it does not
appear that any consideration was given
to the fact that we legitimately
classified this as a complete grant,
removing this issue from appeal.
It appears that the Veterans Service Center Manager would
require the veteran to submit a Notice of Disagreement
concerning the determination that the assigning of the 40
percent rating effective in February 1996 was a complete
grant of benefits. The Board disagrees with the RO's
determination that the decision was a complete grant of
benefits. See Fenderson v. West, 12 Vet. App. 119 (1999).
The veteran specifically appealed the initial 20 percent
rating, yet the RO assigned the 40 percent rating from
February 1996. "[O]n a claim for an original or increased
rating, the claimant will generally be presumed to be seeking
the maximum benefit allowed by law and regulation, and it
follows that such a claim remains in controversy where less
than the maximum available benefit is awarded." AB v.
Brown, 6 Vet. App. 35, 38 (1993).
As noted in the Board's previous remand, the veteran asserts
that the record supports the assignment of both SMC based on
the loss of use of the left (minor) hand and a TDIU, as his
service-connected disabilities have rendered him unable to
use his left hand and to secure and follow any form of
substantially gainful employment consistent with his
education and work experience. As the increased rating issue
remains on appeal, and as the SMC and TDIU issues are
inextricably intertwined with the increased rating issue, the
appeals must be remanded once again.
The RO has not addressed the increased rating issue since the
February 1997 rating decision despite the receipt of
additional evidence. Given the staged ratings assigned by
the RO, the Board has recharacterized the increased rating
issue as two issues, as set forth on the first page of this
decision.
In light of the foregoing, the Board is REMANDING this case
for the following actions:
1. The RO should conduct any indicated
development, including a VA medical
examination if warranted, and
readjudicate the increased rating issues
on appeal.
2. Then, the RO should conduct any
indicated development, including a VA
medical examination if warranted, and
readjudicate the SMC and TDIU issues. If
the benefits sought on appeal are not
granted, the veteran should be issued a
Supplemental Statement of the Case, which
should include all pertinent laws and
regulations, and be afforded a reasonable
opportunity to reply thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is otherwise notified, but he may
furnish additional evidence and argument while the case is in
remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992); Booth v. Brown, 8 Vet. App. 109 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).